Lim v Lim

[2022] NSWSC 454

Supreme Court

New South Wales

Medium Neutral Citation:

Lim v Lim [2022] NSWSC 454

Hearing dates:

8-10 February 2022

Date of orders:

14 April 2022

Decision date:

14 April 2022

Jurisdiction:

Equity

Before:

Hallen J

Decision:

See Paragraph [463]

Catchwords:

SUCCESSION — Contested probate – Elderly will-maker – Validity of last Will of the deceased – The Plaintiff, a son of the deceased and a major beneficiary named in a number of earlier duly executed Wills of the deceased, propounds penultimate Will made in 2011 – Last Will of the deceased made in 2019 leaves estate to be shared equally between four of the five children of the deceased – Grant of Probate in common form of the 2019 Will sought to be revoked sought by Plaintiff – Alleged lack of testamentary capacity, lack of knowledge and approval, and suspicious circumstances, alleged by the Plaintiff at the time the deceased made the 2019 Will – Whether the Defendant/Cross-Claimant, as the propounder of the 2019 Will, has established testamentary capacity and knowledge and approval and removed residual doubts – No dispute about validity of the 2011 Will by the deceased – Agreement of the parties that if the grant of Probate of the 2019 Will is revoked, Probate in solemn form of the 2011 Will, should be granted. Parties able to agree on how costs of the proceedings should be borne whatever the result of the proceedings

Legislation Cited:

Births Deaths and Marriages Registration Act 1995 (NSW), s 49(2)

Evidence Act 1995 (NSW), s 140(2)

Probate and Administration Act 1898 (NSW), ss 33, 66

Succession Act 2006 (NSW), s 6

Uniform Civil Procedure Rules 2005 (NSW), rr 31.18, 14.4

Cases Cited:

Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17

Bailey v Bailey (1924) 34 CLR 558; [1924] HCA 21

Banks v Goodfellow (1870) LR 5 QB 549

Bates v Messner (1967) 67 SR (NSW) 187

BCI Finances Pty Ltd (In Liq) v Binetter (2018) 362 ALR 597; [2018] FCAFC 189

BCI Finances Pty Ltd (In Liq) v Binetter (No 4) (2016) 348 ALR 227; [2016] FCA 1351

Blendell v Byrne; the Estate of Noeline Joan Blendell [2019] NSWSC 583

Bool v Bool [1941] St R Qd 26

Bramston v Morris; Estate of Murray; Estate of Sini Sophia Murray (aka Sini Sophia Vecht) (Supreme Court (NSW), Powell J, 20 August 1993, unrep)

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34

Brown v Wade [2010] WASC 367

Bull v Fulton (1942) 66 CLR 295; [1942] HCA 13

Carr v Homersham (2018) 97 NSWLR 328; [2018] NSWCA 65

Chant v Curcuruto; Chant v Curcuruto [2021] NSWSC 751

Chisak v Presot [2021] NSWSC 597

Chiu Man Fu v Chiu Chung Kwan Ying [2012] HKCFI 82

Choy Po Chun v Au Wing Lun [2018] HKCA 403

Croft v Sanders [2019] NSWCA 303

Dickman v Holley; Estate of Simpson [2013] NSWSC 18

Estate Cockell; Cole v Paisley [2016] NSWSC 349

Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786

Estate of George Aeneas McDonald; Howard v The Sydney Children’s Hospital Network (Randwick & Westmead) [2015] NSWSC 1610

Estate Rofe [2021] NSWSC 257

Friesen and Holmberg v Friesen Estate (1985) 33 Man R (2d) 98

Frizzo v Frizzo [2011] QCA 308

Gaio v R (1960) 104 CLR 419; [1960] HCA 70

Gill v Woodall [2011] Ch 380; [2010] EWCA Civ 1430

Gradidge v Grace Bros Pty Ltd (1988) 93 FLR 414

Hawes v Burgess [2013] WTLR 453; [2013] EWCA Civ 74

Hoff v Atherton [2005] WTLR 99; [2004] EWCA Civ 1554

Hughes v Pritchard [2022] EWCA Civ 386

In re Berger, dec’d [1990] Ch 118

In re Groffman, decd [1969] 1 WLR 733

In re Munn [1943] SASR 304

In re R (dec’d) [1950] 2 All ER 117

In the matter of Mediation & Online Dispute Resolution Operating Network Pty Ltd [2022] NSWSC 5

In the Will of England (1900) 22 ALT 86

Jolley v Jarvis [1964] P 262 at 272; [1964] 1 All ER 596

Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8

Key v Key [2010] WLR 2020; [2010] EWHC 408

King v Hudson [2009] NSWSC 1013

Kuhl v Liebcheschel [1933] SASR 394

Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11

Lewis v Lewis [2021] NSWCA 168

Loosley v Powell [2018] 2 NZLR 618; [2018] NZCA 3

Manning v Hughes; Estate of Ludewig [2010] NSWSC 226

Mavrideros v Mack (1998) 45 NSWLR 80; [1998] NSWCA 286

McNamara v Nagel [2017] NSWSC 91

Mekhail v Hana; Mekail v Hana [2019] NSWCA 197

Neilson v Public Trustee; The Estate of Ellen Letitia Neilson (Supreme Court (NSW), Powell J, 8 May 1992, unrep)

Ng v Lau; In the Estate of Ken Kui Yuen Lau [2020] NSWSC 713

Nicholson v Knaggs [2009] VSC 64

Nock v Austin (1918) 25 CLR 51; [1918] HCA 73

Oakes v Uzzell [1932] P 19

Paraskov v Paraskos [2002] WASC 109

Parton v Johnson (1868) LR 1 PD 549

Payne v Parker [1976] 1 NSWLR 191

Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6; [1999] FCA 507

Perpetual Trustee Co Ltd v Baker [1999] NSWCA 244

Perrins v Holland [2009] EWHC 1945

Petrovski v Nasev; The Estate of Janakievska [2011] NSWSC 1275

Re Griffith; Easter v Griffith (1995) 217 ALR 284

Re Levy [1953] VLR 652

Richardson v Rearden [2006] NSWSC 1252

Ridges v Watson (Supreme Court (NSW), Powell J, 1 May 1992, unrep)

Robertson v Barker [2021] NSWSC 1682

Romascu v Manolache [2011] NSWSC 1362

Rowe v Sudholz [2019] QSC 306

Ruskey-Fleming v Cook [2013] QSC 142

Scarpuzza v Scarpuzza (2011) 4 ASTLR 244; [2011] WASC 65

Sharp v Adam [2006] WTLR 1059; [2006] EWCA Civ 449

Simon v Byford [2014] WTLR 1097; [2014] EWCA Civ 280

Stanley v Stanley [2000] NSWSC 1133

Starr v Miller [2022] NSWCA 46

Starr v Miller; Starr v Miller [2021] NSWSC 426

Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285

Trustee for the Salvation Army (NSW) Property Trust & Anor v Becker (2007) 14 BPR 26,867; [2007] NSWCA 136

Tsagouris v Bellairs [2010] SASC 147

Veall v Veall (2015) 46 VR 123; [2015] VSCA 60

Weiss v Weiss; Estate of Anita Hildegard Weiss [2020] NSWSC 1064

Wharton v Bancroft [2011] EWHC 3250 (Ch)

Zorbas v Sidiropoulous (No. 2) [2009] NSWCA 197

Texts Cited:

A Learmonth, C Ford, J Clark and J Ross Martyn (eds), Williams, Mortimer and Sunnucks on Executors, Administrators and Probate (21st ed, 2018, Sweet & Maxwell)

A Learmonth, J Clarke, K Shuman, C Ford and T Fletcher, Theobald on Wills (19th ed, 2021, London, Sweet and Maxwell)

G L Certoma, The Law of Succession in New South Wales (4th ed, 2010, Lawbook Co)

Guidelines for Solicitors Preparing an Enduring Power of Attorney (December 2003)

I J Hardingham, M A Neave and H A J Ford, Wills and Intestacy in Australia and New Zealand (2nd ed, 1989, Law Book Co)

Jarman on Wills (8th ed, 1951, London, Sweet and Maxwell)

Judicial Council on Cultural Diversity, “Recommended National Standards for Working with Interpreters in Courts and Tribunals” (2017)

K Laster and V Taylor, Interpreters & the Legal System (1994, The Federation Press)

M Barnett, "Mind Your Language - Interpreters in Australian Immigration Proceedings " (2006) 10(1) University of Western Sydney Law Review 109

New South Wales Law Society "When a client's capacity is in doubt: A Practical Guide for Solicitors" (2016)

New South Wales Law Society's Client Capacity Guidelines: Civil and Family Law Matters (2003)

O Wood and G L Certoma, Hutley, Woodman & Wood: Succession: Commentary and Materials (4th ed, 1990, Law Book Co)

Category:

Principal judgment

Parties:

Tong Boon Lim (Plaintiff)
Sony Tong Yew Lim (Defendant)

Representation:

Counsel:
D C Price (Plaintiff)
D M Flaherty (Defendant)

Solicitors:
Glass Goodwin (Plaintiff)
Mullick & Associates (Defendant)

File Number(s):

2020/334081

Publication restriction:

Nil

Judgment

Introduction

1. In Inre Berger, dec’d [1990] Ch 118 at 133E, Sir Denys Buckley wrote:

“The function in English law of a probate court is to ascertain and determine what testamentary paper or papers is or are to be regarded as constituting the last will of the testator, and who is entitled to be constituted his legal personal representative.”

2. In Wharton v Bancroft [2011] EWHC 3250 (Ch), Norris J wrote at [9]:

“The task of the probate court is to ascertain what (if anything) was the last true will of a free and capable testator. The focus of the enquiry is upon the process by which the document which it is sought to admit to proof was produced. Other matters are relevant only insofar as they illuminate some material part of that process. Probate actions become unnecessarily discursive and expensive and absorb disproportionate resources if this focus is lost."

3. In Hawes v Burgess [2013] WTLR 453; [2013] EWCA Civ 74, Mummery LJ (with whom Patten LJ and Sir Scott Baker agreed), wrote at [14]:

“I should add a statement of the obvious in order to dispel any notion that some mysterious wisdom is at work in this area of the law: the freedom of testation allowed by English Law means that people can make a valid will, even if they are old or infirm or in receipt of help from those whom they wish to benefit, and even if the terms of the will are hurtful, ungrateful or unfair to those whose legitimate expectations of testamentary benefit are disappointed. The basic legal requirements for validity are that people are mentally capable of understanding what they are doing when they make their will and that what is in the will truly reflects what they freely wish to be done with their estate on their death.”

4. In Gill v Woodall [2011] Ch 380; [2010] EWCA Civ 1430, also a probate case concerning a challenge to a will brought on the grounds of lack of testamentary capacity and want of knowledge and approval, Lord Neuberger MR, the Master of the Rolls, highlighted the need for caution in dealing with challenges to wills by disappointed beneficiaries, writing at [16]:

“…. Wills frequently give rise to feelings of disappointment or worse on the part of relatives and other would-be beneficiaries. Human nature being what it is, such people will often be able to find evidence, or to persuade themselves that evidence exists, which shows that the will did not, could not, or was unlikely to, represent the intention of the testatrix, or that the testatrix was in some way mentally affected so as to cast doubt on the will. If judges were too ready to accept such contentions, it would risk undermining what may be regarded as a fundamental principle of English law, namely that people should in general be free to leave their property as they choose, and it would run the danger of encouraging people to contest wills, which could result in many estates being diminished by substantial legal costs.”

5. This is the Court’s judgment following the hearing of a contested probate action brought by one sibling against another in relation to their mother's last will. The issues to be determined relate to whether that will is valid.

6. Mr D C Price of counsel, instructed by Ms L Gidley, solicitor, appeared for the Plaintiff, whilst Mr D Flaherty of counsel, instructed by Ms J Mullick, solicitor, appeared for the Defendant. I am grateful to the legal representatives for the manner in which they conducted the hearing, and for their industry, and effort, in the submissions, which I have found helpful.

7. The hearing was listed to proceed, principally, as an attended live hearing. However, by the time the hearing commenced, the parties had agreed that a number of the witnesses, mostly the experts, to whom I shall refer, should give evidence, remotely, by video link using Microsoft Teams. The Court acceded to this course.

8. The hearing was listed for three days and was completed within that time. Naturally, the Court followed the Supreme Court's then most recent Coronavirus (COVID-19) announcement of 25 January 2022 and required masks to be worn by everyone in the courtroom with the exception of those speaking. The physical distancing rules remained in operation.

The nature of the dispute

9. Daisy Ut-Mui Lam ("the deceased") died on 16 November 2019 leaving property in New South Wales. At the date of her death, she was almost 90 years old, having been born in November 1929. Two of her five, now adult, children are the parties in these proceedings.

10. Whilst litigation involving family members about a will often becomes a proxy for disagreements between the parties about quite different matters occurring during the lifetime of the deceased, this is not such a case. The drama of the family rifts, if any, did not unfold in the evidence. To the contrary, there was scant information about the deceased and members of her family, and about other important matters to which I shall refer. None of the family members gave detailed evidence about the deceased’s relationship with her children and the role each played in the deceased’s life (except about the Plaintiff and his wife). Perhaps, it is because there was no dispute that the deceased “got along with everyone”: Tcpt, 8 February 2022, p 51(30). Counsel for the Plaintiff, in my view correctly, described the evidence as “manifestly deficient”.

11. The limited evidence given by those witnesses does not enable the Court to paint any clear picture of the deceased’s personality or abilities. In any event, as a number of the witnesses gave divergent accounts of her mental state and language abilities in October 2019, it will be necessary to examine the evidence bearing upon the execution of the disputed Will with care.

12. I shall refer to the party/family members as “the Plaintiff” or “the Defendant” where appropriate, or, after introduction, by the name used by the parties. I do so for clarity, and convenience, and without intending to convey undue familiarity or disrespect.

13. The Plaintiff, Tong Boon Lim (“Boon”) brought the proceedings against Sony Tong Yew Lim (“Sony”), the executor, to whom this Court, on 28 September 2020, granted Probate in common form of the deceased’s duly executed Will dated 16 October 2019. Two of the other executors named in that Will, being Lily Sok Lei Chan (“Lily”) and Ping-Ping Sok Peng Lam (“Ping”), who are also children of the deceased and siblings of the Plaintiff and of the Defendant, renounced probate on 15 July 2020 and 1 September 2020 respectively. In making the grant of Probate of the 2019 Will, leave was reserved to Boon, who is the other executor named, to come in and prove the 2019 Will. I shall, without prejudgment, refer to this Will as “the 2019 Will”.

14. Another child of the deceased, Rose Sok Keow Tan (“Rose”), is neither a party to, nor a witness in, the proceedings, and is not a beneficiary named in the penultimate Will to which reference will be made.

15. Pursuant to a direction made on 8 February 2021, the Defendant delivered to the Senior Deputy Registrar in Probate, for inclusion in the Court file, the original Probate document to which the 2019 Will was attached. It was tendered, without objection, and marked Ex D1.

16. The Plaintiff commenced the proceedings by Statement of Claim filed on 24 November 2020. Relevantly, he sought revocation of Probate of the 2019 Will and an order that Probate in solemn form of a Will made by the deceased on 29 July 2011 be granted to him. I shall refer to this Will as the 2011 Will. He also sought an order that his costs, calculated, on the indemnity basis, be paid out of the estate of the deceased.

17. The original of the 2011 Will was also delivered to the Senior Deputy Registrar in Probate for inclusion in the Court file. It was tendered, without objection, and marked Ex P1.

18. There was no dispute that the Plaintiff satisfied the foundation of title to be a party to the suit, namely that he has an “interest” in the estate of the deceased. Probate litigation is “interest” litigation and an applicant for revocation of a grant must be able to show that his, her, or its, rights will, or may, be affected by the outcome of the proceedings. An interest sufficient to entitle a person to oppose a grant of probate or letters of administration is sufficient to entitle a person to apply for revocation of a grant of probate or letters of administration: Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 at [212]-[213] (Lindsay J).

19. Shorn of detail, the Plaintiff alleges that the deceased did not have testamentary capacity when she executed the 2019 Will and that she did not know and approve of its contents. He also alleges “suspicious circumstances”. As will be read, principally what underlies the litigation is the fact that, in the 2019 Will, the Plaintiff’s share of the estate has been reduced significantly.

20. Included in the Statement of Claim, as one of the particulars of the lack of knowledge and approval, and of the allegation of “suspicious circumstances”, was “[T]he deceased was told that she needed to re-sign her 2011 Will as it had not been signed”: Paragraph 8(e).

21. At the commencement of the hearing, the Court raised with counsel the question whether this particular, if proved, amounted to fraud, which had not been specifically pleaded as a ground for invalidating the 2019 Will in the Statement of Claim.

22. Uniform Civil Procedure Rules 2005 (NSW) rule 14.4, relevantly, provides:

(1)   In a statement of claim, the plaintiff must plead specifically any matter that, if not pleaded specifically, may take the defendant by surprise.

…

(3)   Matters which must be pleaded pursuant to sub-rule (2) include (but are not limited to) fraud …

23. In O Wood and G L Certoma, Hutley, Woodman & Wood: Succession: Commentary and Materials (4th ed, 1990, Law Book Co) at 92, the learned authors wrote:

“A will may be invalidated either wholly or partly if execution of the will is induced by fraud. Fraud exists where the testator is misled by means of wilfully false statements or by suppression of material facts for the purpose of either gaining benefits under the will or preventing benefits being received by the natural objects of the testator’s bounty. Failure to advise the testator as to the effect of his testamentary act may amount to fraud. Generally, the person responsible for fraud is seeking to obtain benefits for himself, but this is not necessarily so.”

24. In Ridges v Watson (Supreme Court (NSW), Powell J, 1 May 1992, unrep), Powell J wrote:

"the concept of 'fraud' in this area of the law, although not entirely clear, is, as I understand it, not limited to wilfully false statements, or the suppression of material facts, going to the execution of the will which is impugned, but may extend to statements, or the suppression of material facts, which statements were wilfully false and were made, or which facts were material and were suppressed, for the purposes either of gaining benefits under the will, or of preventing benefits being received by the natural objects of the testator's testamentary bounty."

25. Reference should also be made to Nock v Austin (1918) 25 CLR 519 at 528; [1918] HCA 73, in which Isaacs J had written that “[T]he doctrine that suspicion must be cleared away does not create ‘a screen’ behind which fraud, or dishonesty, may be relied on without distinctly charging it” and to Trustee for the Salvation Army (NSW) Property Trust & Anor v Becker (2007) 14 BPR 26,867; [2007] NSWCA 136 at [69], in which Ipp JA (with whom Mason P and McColl JA agreed) wrote that although there were suggestions in some probate cases that it may not be necessary to make positive allegations of fraud, such an approach is contrary to the modern notion of justice and “consistent with the modern approach to allegations of fraud, generally, in probate actions, fraud must be explicitly pleaded”.

26. In response to the Court’s question, and without hesitation, counsel for the Plaintiff disclaimed reliance upon fraud as a ground for the invalidity of the 2019 Will and for revoking the grant of Probate: Tcpt, 8 February 2022, p 3(13-17).

27. Before departing the reference to the Statement of Claim, the Plaintiff, orally, sought leave to amend it, by adding, in Paragraph 8, the following particular of the lack of knowledge and approval:

“The deceased did not wear her hearing aids during the conference on 16 October 2019 with Mr Lee. The deceased had longstanding bilateral hearing loss such that she had extreme difficulty hearing conversations in quiet conditions in a room unless she was wearing her hearing aids.”

28. Without opposition from the Defendant, I granted leave to the Plaintiff to amend the Statement of Claim. (To save time and costs, rather than requiring the filing of an amended Statement of Claim, a hard copy of the particular is Ex P4 in the proceedings. It should be read as part of the Statement of Claim.)

28. The Plaintiff did not make a claim for a family provision order out of the estate or notional estate of the deceased. Nor is there any claim by him alleging a testamentary contract with the deceased, or reliance upon some form of estoppel because of representations allegedly made to him by the deceased.

29. In the Defence, filed on 18 December 2020, the Defendant disputed the Plaintiff’s entitlement to have Probate of the 2019 Will revoked. He also asserted that the 2011 Will had been revoked by the 2019 Will. In a Statement of Cross-Claim, filed on 18 December 2020, he sought a declaration that the 2019 Will constituted the last will of the deceased and sought an order that Probate in solemn form be granted to him.

30. There was no dispute, in the circumstances of this case, that even though Probate in common form had been granted, there was a sufficient case to raise doubts about the 2019 Will so as to require the probate to be brought in, and that it was for the Defendant to prove, affirmatively, that the deceased had testamentary capacity and that she knew and approved the contents of the 2019 Will.

31. Counsel also agreed that if the Statement of Claim were dismissed, it was not necessary to revoke the grant in common form of Probate of the 2019 Will and to make a grant of Probate in solemn form of that will. They accepted that where Probate in solemn form is granted after Probate in common form has been granted, the usual practice of the Court is not to revoke the original grant of Probate, but to make an order that the original grant, and the newly made grant in solemn form, are bound together and issued as one document. In this way, any person who wishes to see the original of the grant of Probate will be presented with a document which accurately states what has occurred: Starr v Miller; Starr v Miller [2021] NSWSC 426 at [21], and Chisak v Presot [2021] NSWSC 597 at [22]. (I should mention that an appeal in Starr v Miller was dismissed by the Court of Appeal in Starr v Miller [2022] NSWCA 46 and that an appeal in Chisak v Presot was heard on 25 March 2022, but judgment has not been delivered.)

32. The Defendant accepted that if the 2019 Will were found not to be a valid will, then Probate of the 2019 Will should be revoked, and that there should be a grant of Probate, in solemn form, of the 2011 Will, to the Plaintiff, who is the sole executor named in that will. In such circumstances, even though the parties agreed, the Court, independently, must still be satisfied of the due execution of the 2011 Will.

33. Notice of the Plaintiff’s application for probate of the 2011 Will was published in the NSW Online Registry website on 10 January 2020.

34. Notice of the Defendant’s application for probate had been published in the NSW Online Registry website on 15 July 2020.

35. The parties provided a Tender Bundle of Documents comprising 63 pages and a copy of the Notice of Proceedings: Ex D2.

The deceased’s Wills

37. It is next convenient to deal with the various wills made by the deceased. I shall do so remembering what was written by Sir J P Wilde in Parton v Johnson (1868) LR 1 PD 549 at 551:

"When several wills are propounded it would be extremely inconvenient to try the validity of the earlier wills before the validity of the will latest in date is decided. The validity of the latest will should be determined in the first instance".

38. There was no dispute that each of the two most relevant wills to which reference has been made, was professionally drawn; that each was written in the English language; that each had been executed by the deceased in New South Wales; and that each satisfied the statutory requirements of s 6 of the Succession Act2006 (NSW), relating to how a will should be executed, namely that (a) it was in writing and signed by the deceased; (b) the signature was made by the deceased, in the presence of two, or more, witnesses present at the same time; and (c) two of those witnesses attested and signed the will in the presence of the deceased.

39. Each of the two most relevant wills was also explicitly testamentary in character; was revocatory and dispositive; appointed an executor, or executors, contained incontrovertibly clear specific gifts, and dealt with the entirety of the estate of the deceased. In broad terms, the pattern of distribution was the same although the provision made for each of the deceased’s children was different.

40. The Plaintiff gave evidence, not the subject of challenge, that after the deceased’s funeral, he found a copy of the 2019 Will in the deceased’s handbag and that it was the first time he had seen a copy of that will.

41. In the 2019 Will, there was an attestation clause which was in the following terms:

“The testator (the testatrix being able to understand the Mandarin Chinese language but having an imperfect knowledge of the English language) after the witness Mei Li who understands both the Mandarin Chinese and the English languages had read the will over to the testatrix in English and then had truly interpreted and read it to the testatrix in the Mandarin Chinese language (which reading and interpreting to the testatrix were both done in the presence of Mei Li and Jeffrey Lee and after which the testatrix stated to Mei Li her understanding and approval of the will, which Mei Li, interpreted to the witness Jeffrey Lee in English) signed in the presence of both of us being present at the same time, and we attested their signature in the presence of them and of each other.”

42. Above the attestation clause was the deceased’s signature, written in Chinese, and below it, was the signature of Mr Lee, the solicitor who drafted the 2019 Will, and of Ms Li, the interpreter who attended the conference which took place on the day the Will was prepared and executed.

43. Relevantly, part of Clause 7 of the 2019 Will provided for the estate to be held on trust, firstly to “pay any and all death, estate or succession duties, debts, legacies, funeral and testamentary expenses and any other costs, fees, or expenses, associated with my death or the administration of my estate” and then to “give the rest and residue of my estate equally between such of Tong-Boon Lim, Lily Sok Lei Chan, Sony Tong Yew Lim and Ping-Ping Sok Peng Lam who survive me and attain the age of 18 years”. (Each had earlier been named as an executor.)

44. The 2019 Will comprised 2.5 pages, with the whole of the second page detailing a list of the powers given to the executors and trustees in Clause 8.

45. The Plaintiff also gave evidence, not the subject of challenge, that he found a copy of the 2011 Will when he attended at the Burwood branch of the Commonwealth Bank to clear the safety deposit box held by the deceased. It was the first time he had seen a copy of that will.

46. The 2011 Will comprised 5 pages. Relevantly, the 2011 Will provided:

1. the appointment of the Plaintiff as the sole executor and trustee: Clause 2.

2. a gift, free of all duties, death estate or succession, State or Federal, of “all my monies held in the Commonwealth Bank of Australia to such of my grandsons, Toon Lim and Darren Lim, as shall survive me in equal shares”: Clause 3.

3. a gift of all jewellery to be shared equally between Boon and Ping, with the executor making the decision as to the division, in his absolute discretion and finally: Clause 4.

4. the division of the rest and residue, as to 62 per cent to Boon; as to 30 per cent to Ping; as to 3 per cent to Lily; and as to 5 per cent to Sony: Clause 5.

5. Boon was also given the right to buy the Burwood property at a value determined as set out in Clause 6, which right could be exercised by him within 5 years of the date of death, with the proceeds of sale to be paid to the residuary beneficiaries as provided for in Clause 5.

6. Clause 8 provided:

“I am giving a greater proportion of my estate to the said TONG BOON LIM in recognition of his living with me and looking after me for many years in my own home and his stated commitment to continue to do so during my old age.”

47. (There was no evidence by any witness that Boon had not continued to live with the deceased, and, with his wife, Alice, had continued to look after the deceased until she died.)

48. The attestation clause in the 2011 Will was in the following terms:

“The Testatrix not being able to read or speak the English language. Hainanese dialect being the customary Chinese language understood by her. The Will was read to her translated into Hainanese dialect in our presence by Doris Lee of 2 Glenarvon Street, Strathfield, whereupon the Testatrix had such that she knew and approved the contents of the Will. It was then signed by the Testatrix in the presence of Doris Lee and Winnie Cheung.”

49. Adjacent to the attestation clause was the deceased’s signature, written in Chinese, and below it, was the signature of Winnie Cheung, a secretary, and the signature of Doris Lee, a solicitor.

50. On the second day of the hearing, without opposition, and with the leave of the Court, the Plaintiff’s solicitor filed an affidavit of Doris Lee, the solicitor and one of the attesting witnesses, in which affidavit she confirmed that the 2011 Will had been duly executed.

51. (Because the Plaintiff had sought a grant of Probate in solemn form of the 2011 Will, he was required to have at least one of the attesting witnesses give evidence in order to prove due execution: In re Munn [1943] SASR 304; Oakes v Uzzell [1932] P 19; Blendell v Byrne; the Estate of Noeline Joan Blendell [2019] NSWSC 583 at [422].)

52. There were a number of other wills made by the deceased. They are not being propounded by anyone because there is no dispute that the 2011 Will is the last valid will of the deceased if it was not revoked by the 2019 Will. These prior wills are relevant because each reveals the testamentary intentions of the deceased, albeit at different times, and the pattern of her testamentary disposition, all of which is relevant in the proceedings.

53. I shall refer to the two prior wills in a summary way.

54. The third last will in time, a copy of which is in evidence is one dated 8 December 2000 (“the 2000 Will”). Following the deceased’s death, the Plaintiff found a copy of this Will, which he acknowledged bore her signature, “in an envelope in a drawer of the dressing table in the deceased’s bedroom”.

55. The 2000 Will appointed Boon as executor and trustee; gave a pecuniary legacy of $40,000 to Rose; divided the residue of the estate, as to 50 per cent, to Boon; as to 30 per cent, to Ping; as to 10 per cent to Lily; and, as to 10 per cent, to Sony.

56. The 2000 Will had an attestation clause, which referred to the deceased not being able to read, or speak, the English language and that the Will was read, and translated, to her in the Hainanese language.

57. Next to the attestation clause was the deceased’s signature, written in Chinese, and below it, was the signature of Doris Lee, solicitor and J L Foo, who was referred to as “Housewife”.

58. The first will in time is one dated 4 November 1986 (“the 1986 Will”). The Plaintiff gave evidence that he found a copy of this will, which he acknowledged bore the signature of the deceased, in a separate envelope in a different drawer of the dressing table in which he located the found the 2000 Will. (He also found a copy of his father’s will, signed on 4 November 1986. It was not produced.)

59. In the 1986 Will, the deceased appointed her husband, David Pen-Kung Lam, as the executor of her estate and left the whole of her estate to him if he survived her. If he did not, she left the residue of her estate, as to one-third, to Boon; one-third to Ping; one-sixth to Rose; one twelfth to Sony; and one twelfth to Lily.

60. There was an attestation clause, but, on this will, it did not refer to the deceased not being able to read, or speak, the English language, or that the will had been read, and translated, to her. Next to the attestation clause was the deceased’s signature in English and in Chinese and below it, was the signature of D Yeung, solicitor and an illegible signature of someone described as “Secretary”.

61. According to the evidence, the fact that the deceased had made each of the wills, other than the 2019 Will, appears to have been a secret not revealed to her family, in the sense that none of the children gave evidence of having known about the contents of any of the earlier wills. The Plaintiff, however, gave evidence of having “conversations on multiple occasions” many years before her death about her Will: Tcpt, 8 February 2022, p 50(4-11).

62. This examination of the testamentary intentions of the deceased, reveals a dramatic change between the 2019 Will and the earlier Wills. As will be obvious, the 2019 Will had several effects. First, by revoking the 2011 Will, it altered the identity of the executor and trustee, making Boon only one of the four executors and trustees, rather than the sole executor; second it lessened the percentage share in the residue of the estate given to Boon, with the result that he received significantly less than he had received in any of the earlier wills made by the deceased; third, it effected a division of the whole of the deceased’s residuary estate equally between four of her five children; and fourth, it gave Boon no right to buy the Burwood property at a value determined by the deceased, which right could be exercised by him within 5 years of the date of death.

63. No witness gave evidence of any conversation with the deceased, which revealed any explanation by her, for the changes. Nor did any witness give evidence of any precipitating event or events, that led, or that might have led, to the subsequent changes of the deceased’s testamentary dispositions shortly prior to her death.

The deceased’s estate

64. As will be read, there was no discussion between the deceased and the solicitor who took instructions for the 2019 Will, about the nature or value of the property that the deceased then held. I shall return to this topic later in these reasons. However, in the Inventory of Property attached to, and placed inside, the grant of Probate of the 2019 Will, the only property of the deceased was said to be real estate situated at Shaftesbury Road, Burwood (“the Burwood property”). There was a dispute about its current value, but it is not necessary to resolve this dispute.

The costs of the proceedings

65. Following the conclusion of the hearing, sensibly, the parties agreed how the costs of the proceedings should be dealt with. Counsel informed the Court that whatever the result of the proceedings, the following orders should be made in respect of the costs of the proceedings:

1. Orders that the Plaintiff’s costs and disbursements of the proceedings, being a specified gross sum instead of assessed costs, agreed in sum of $125,000 (including GST), be paid out of the estate of the deceased.

2. Orders that the Defendant’s costs and disbursements of the proceedings, being a specified gross sum instead of assessed costs, agreed in sum of $150,000 (including GST), be paid out of the estate of the deceased.

66. In reaching the amount for costs, the Plaintiff’s costs were said to have been calculated on the ordinary basis, whilst the Defendant’s costs were said to have been calculated on the indemnity basis.

67. I am prepared to make these orders as they are appropriate in all the circumstances of the case bearing in mind the principles in relation to costs in Probate proceedings (which principles are unnecessary to repeat). In addition, it will save the parties time, and trouble, in having costs formally assessed.

The issues

68. The central questions that needed to be determined in the proceedings, and my conclusions, are:

1. Did the deceased have testamentary capacity when she made the 2019 Will? I am not satisfied that she had testamentary capacity.

2. Did the circumstances give rise to the application of the doctrine of suspicious circumstances and, if so, does it displace any presumption of knowledge and approval? I conclude that the facts give rise to the application of that doctrine and that those facts do displace the presumption of knowledge and approval.

3. Did the deceased know and approve the contents of the 2019 Will? I am not satisfied that she knew and approved the contents of the 2019 Will.

Dramatis Personae

69. Like all other Probate proceedings, these proceedings pose problems for the Court because the protagonist, the will-maker, is dead. Her personality, state of mind, desires, and prejudices, her relationship with family members for whom she did, or did not, provide, and the reasons or justification for the change in her testamentary dispositions, are all matters that the Court needs to examine, carefully, in order to come to a finding about the validity of the disputed will. With her death, most of these matters can only be examined by way of second-hand, and often, partisan, evidence: Chiu Man Fu v Chiu Chung Kwan Ying [2012] HKCFI 82 at [51] (Poon J). As stated earlier, in this case, much of that evidence is lacking.

70. Each of the witnesses who feature in the case and to whom I shall refer, was cross-examined. I shall return to the nature of the evidence given by him, or her, and to my views on his, or her, credibility, respectively, later in these reasons. However, in relation to some witnesses, I shall refer to her, or his, evidence if it was not the subject of real dispute, or if I am satisfied that it has been established on the balance of probabilities.

71. The Plaintiff gave evidence in a number of affidavits and orally. His version of events was somewhat abbreviated. For example, he did not disclose much information about the deceased in his affidavits. He also gave limited evidence about the events of 16 October 2019 to which I shall return.

72. Alice Soo Eng Lim is Boon’s wife. They were married in 1979 and, thereafter, she, with the Plaintiff lived with the deceased and the deceased’s husband, until 1991, when he died. Thereafter, Boon and Alice remained living with the deceased in the Burwood property until her death in November 2019.

73. Alice gave evidence that she and the deceased “spoke a patois of Teochew, Hainanese, Hokkien and Cantonese as I am not a fluent speaker of Hainanese and speak Teochew as my native language … She did not speak or understand more than a few words of Mandarin… All [the deceased’s] social life with friends was conducted in Hainanese”. Alice also gave evidence of the role that she and the Plaintiff had played in the life of the deceased whilst they were all living together.

74. Alice Han is the sister of the deceased. She was born in the Chinese province of Hainan in 1947. She gave evidence that she and her siblings “grew up in Singapore…”. She also gave evidence that the deceased was “unable to get an education and, therefore, could only read, or write, at a very simple level”. She communicated orally with the deceased very regularly, but only in the Hainanese dialect.

75. Ms Han’s evidence was somewhat limited because she gave evidence that the deceased “did not share with me if she had made a will and did not give details of how she wanted to distribute her estate”. As will be read, however, what she had written was explained.

76. The Defendant gave very brief evidence, which was largely uncontroversial. He had seen the deceased, for about 3 hours, at the Burwood property on 16 October 2019 (the day the 2019 Will was drafted and executed). He did not stay longer, as he was told that the deceased and his siblings, “were going to travel to the city that afternoon to see a solicitor”. He said that, on this occasion, he had spoken to the deceased in Mandarin Chinese, and sometimes in the Hainanese dialect, or a combination of both.

77. The Defendant did not give evidence of any conversations with the deceased, either before, or after, 16 October 2019, about her testamentary intentions.

78. Lily lives in the ACT, but frequently travelled to Sydney. In about early October 2019, she travelled to Sydney “to stay with the Deceased at her Burwood home as my brother, Tong Boon Lim … who resided with the deceased was about to travel overseas”. She also gave some evidence about the events of 16 October 2019 to which I shall return.

69. Overall, it seems clear from the evidence of the three children, that the deceased being taken to visit a solicitor was discussed shortly prior to, and on, 16 October 2019. Furthermore, as will be read, at the meeting with the solicitor, 3 of the 5 children attended and were there when the 2019 Will was made and executed. As will also be read, none of the 3 children who had attended with the deceased gave evidence, in his, or her, affidavit, of any conversation with the deceased on the way to, or from, the solicitor’s office, or otherwise, following the making of the 2019 Will. Indeed, each said that there was none.

70. Jeffrey Lee is a solicitor. He drafted the 2019 Will and is one of the two attesting witnesses to the deceased’s signature thereon. He affirmed an affidavit on 14 January 2021 in which he set out “[T]o the best of his knowledge, information and belief, the details of the circumstances in which the subject will of the deceased dated 16 October 2019 was prepared and executed”. There was no dispute that he had not had any previous, and did not have any subsequent, contact with the deceased.

71. There were documents annexed to Mr Lee’s affidavit to which reference will be made. It was not suggested that he was qualified to give, and did not seek any professional, medical opinion about the deceased’s cognitive state at the time he met her.

72. Mei Li is a qualified Mandarin Chinese language interpreter certified by NAATI (National Accreditation Authority for Translators and Interpreters). She did not identify the accreditation NAATI tier into which she fell, although she wrote that she has been providing interpretation services, in the Mandarin Chinese language, for over 37 years.

73. Ms Li was the other attesting witness to the deceased’s signature on the 2019 Will. It was not suggested that she was qualified to give any professional medical opinion on the deceased’s cognitive state at the time she met the deceased. There was no dispute that she had not had any previous, and did not have any subsequent, contact with the deceased.

74. Ms Li acknowledged her signature on the 2019 Will and confirmed, by reference to the Tax Invoice issued for the interpreting services she provided, at the request of Mr Lee, that she had been available between 2:30 p.m. and 5:20 p.m. on 16 October 2019.

75. In her affidavit affirmed on 26 June 2021, Ms Li wrote that she was “unable to specifically recall the event of, or the parties involved in, the signing of the Will”.

76. There were several expert witnesses called to give evidence and who were cross-examined.

77. Associate Professor John Cullen, a Senior Specialist, Geriatric Medicine of Concord Repatriation General Hospital gave evidence in an affidavit sworn on 31 January 2022. He stated in a report dated 16 December 2019 that the deceased was admitted to Concord Hospital under his care between 29 August 2019 and 3 September 2019, from 12 October 2019 to 15 October 2019 and from 31 October 2019 until her death from hepatic failure on 16 November 2019.

78. Bruce James Brew is a Professor of Medicine (Neurology) at the University of New South Wales, practising at St Vincent’s Hospital. He was a single expert engaged in the proceedings. He was clearly an “expert witness” within the definition of that expression in r 31.18 of the Uniform Civil Procedure Rules. He did not meet the deceased during her lifetime.

79. A copy of Professor Brew’s report, dated 9 July 2021, his supplementary report, dated 6 October 2021, and his further supplementary report, dated 6 December 2021, were tendered, together, as Ex D3.

80. Dr Simone Strasser is a Consultant Physician (Hepatologist) “with specific expertise in the care of patients with advanced liver disease and hepatocellular carcinoma (primary liver cancer)”. There was no specific order in relation to Dr Strasser’s appointment as a single expert. However, no objection was taken to the reading of Dr Strasser’s reports and, at the hearing, she was cross-examined. She, too, was clearly an “expert witness”. She, also, did not meet the deceased during her lifetime. A copy of Dr Strasser’s report, dated 17 October 2021, and a copy of her supplementary report dated 13 November 2021 was tendered as Ex P2.

81. Dr Hui Ling Xu is a linguist who provided an opinion “on the history of the Chinese language, sometimes referred to as Sinitic language family” and also on Chinese “dialectology”. This evidence was said to be relevant because of the assertion that the deceased communicated only in the Hainanese language and was far from fluent in the Mandarin Chinese language. A copy of her report, dated 28 July 2021, was tendered as Ex P3.

82. Dr Xu was a single expert engaged in the proceedings and was clearly an “expert witness”. She also did not meet the deceased during her lifetime.

Persons who did not give evidence

93. As a matter of general principle, the unexplained failure by a party to call a witness, may, in appropriate circumstances, give rise to an inference that the evidence of that witness would not have assisted the case sought to be advanced by that party. An inference may be drawn where an available witness is not called.

94. Also, the failure to call a witness may permit the Court, with greater confidence, to draw any inference that is unfavourable to the party that failed to call the witness, if that inference is open on the evidence and the uncalled witness appears to be in a position to cast light on whether the inference should be drawn: Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 at [63]. In either case, it is not a mandatory rule.

95. In Payne v Parker [1976] 1 NSWLR 191 at 201, Glass JA (although in dissent as to the application of the principles to the facts), wrote that whether the principle in Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 can, or should, be applied depends upon whether the conditions for its operation exist. His Honour then identified three conditions: (i) the missing witness would be expected to be called by one party rather than the other; (ii) the evidence would elucidate a particular matter; and (iii) the absence is unexplained.

96. As has recently been written by Rees J in In the matter of Mediation & Online Dispute Resolution Operating Network Pty Ltd [2022] NSWSC 5 at [7]:

“An adverse inference may be drawn in respect of the absence of documentary evidence to support a party’s case, where the party might be expected to be in possession of documents to corroborate their account: Jones v Dunkel (1959) 101 CLR 298 at 320; [1959] HCA 8 (Windeyer J), citing with approval John Henry Wigmore, Wigmore on Evidence (3rd ed, 1940), vol. 2, page 162: “The failure to bring before the tribunal some circumstance, document or witness, when either the party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavourable to the party …”; Burke v LFOT Pty Ltd (2002) 209 CLR 282; [2002] HCA 17 at [134] (Callinan J); Ronchi v Portland Smelter Services Ltd [2005] VSCA 83 at [44] (Eames JA, with whom Buchanan JA agreed); Challenger Property Asset Management Pty Ltd v Stonnington City Council (2011) 34 VR 445; [2011] VSC 184 at [131]–[132] (Croft J); Sino-Resource Imp & Exp Co Ltd v Oakland Investment Group Ltd [2018] QSC 98 at [112] (Henry J)…”

97. Furthermore, as Gleeson J explained in BCI Finances Pty Ltd (In Liq) v Binetter (No 4) (2016) 348 ALR 227; [2016] FCA 1351 at [125], relevantly affirmed on appeal in BCI Finances Pty Ltd (In Liq) v Binetter (2018) 362 ALR 597; [2018] FCAFC 189:

“All evidence “is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted”: Coshott v Prentice (2014) 221 FCR 450; [2014] FCAFC 88 at [80], quoting Blatch v Archer (1774) 1 Cowp 63 at 65; 98 ER 969 at 970. This maxim also bears upon the appropriateness of deciding whether a fact has been proved when only limited evidence is available. In Ho v Powell (2001) 51 NSWLR 572; [2001] NSWCA 168 at [14], [15], Hodgson JA (with whom Beazley JA agreed) said:

[I]n deciding facts according to the civil standard of proof, the court is dealing with two questions: not just what are the probabilities on the limited material which the court has, but also whether that limited material is an appropriate basis on which to reach a reasonable decision …

In considering the second question, it is important to have regard to the ability of parties, particularly parties bearing the onus of proof, to lead evidence on a particular matter, and the extent to which they have in fact done so …”

98. The deceased’s daughter, Rose, did not give evidence and did not, otherwise, play any role in the proceedings. There is no suggestion that she was present in the Burwood property on 16 October 2019, or that she accompanied the deceased and 3 of her siblings to see Mr Lee. She is not a beneficiary named in the 2019 Will, or in the 2011 Will, but she did receive a pecuniary legacy in the 2000 Will, and a one-sixth share of residue (as a substitute beneficiary) in the 1986 Will.

99. I am satisfied from the evidence that, on 2 September 2021, a Notice of Proceedings was served upon Rose. (That evidence consists of an email from the Plaintiff’s former solicitor, acknowledging that instructions had been received to accept service thereof: Ex D2/62-63. A copy of the Notice of Proceedings was also included as part of the exhibit.) On the first day of the hearing, her husband, Dr Tan, was identified as being present in Court: Tcpt, 8 February 2022, p 9(38-46).

100. I do not draw any inference in respect of Rose’s absence since there is no suggestion that she was able to give any evidence that would elucidate a particular matter going to the matters in dispute.

101. The deceased’s daughter, Ping, did not give evidence in the proceedings and her failure to do so was unexplained. A number of witnesses gave evidence that Ping was living in Hong Kong with her family. The Defendant suggested that there may have been a problem with “the COVID virus situation”: Tcpt, 8 February 2022, p 72(21-28).

102. The Defendant was unaware of any reason why Ping could not have provided an affidavit or have given evidence remotely by video-link: Tcpt, 8 February 2022, p 72(15-45).

103. As will be read, she was the person who was said to have had some discussions with Lily; who had contacted Mr Lee to arrange for him to meet with the deceased; who had discussions with her siblings about what was to occur; and, with Boon and Lily, who was present at the conference held at Mr Lee’s office on 16 October 2019.

104. Whilst Ping may not have been present during all of the discussions between Mr Lee, the deceased, and the interpreter, there was evidence that she had been present, with her two siblings, when they are said to have re-entered the conference room and when the broad content of the 2019 Will was said to have been discussed.

105. As will be read, she was also the person to whom the invoices of the solicitor, and of the interpreter, were emailed, although the solicitor’s invoice itself was addressed to the deceased: Ex D2/47-53.

106. It is clear that Ping was a key participant in the events leading up to the making of the 2019 Will. Presumably, she could have given material evidence of the events that occurred both before, at, and after, the conference with the solicitor, in relation to the 2019 Will. One might have expected her to be called by the Defendant. Yet, Ping might have been called by the Plaintiff, because the provision made for her in the 2011 Will was greater than the provision made for her in the 2019 Will. She may have been able to give evidence about the matters referred to above that would have supported the Plaintiff’s case. It is curious that neither party called her to give evidence.

107. I shall bear in mind that Ping was not called as a witness by either party. However, the determination of “[d]isputed questions of fact must be decided by a court according to the evidence that the parties adduce, not according to some speculation about what other evidence might possibly have been led”: Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17 at [165]; Starr v Miller [2022] NSWCA 46 at [69] (Mcfarlan JA).

Affidavits of different experts served shortly before the hearing

108. On Sunday 6 February 2022, the Plaintiff’s solicitor served an affidavit of Rakhee Chandra, described in the affidavit as “the Head of Audiology at Amplifon”. She had been asked “to prepare a short report on [the deceased’s] hearing loss”.

109. The deceased, so it was said, had her hearing tested at Amplifon in September 2007, March 2013, June 2016, and in November 2018. Ms Chandra had not met the deceased and was not the person who had conducted the tests to which she referred in the affidavit. However, the conclusions reached were set out in the report and were based on those records.

110. Counsel for the Plaintiff provided no satisfactory, or other, explanation why the report had not been sought earlier in time and, when sought, had been sought without notice to the Defendant, or to the Court. Indeed, there was no evidence of when instructions were provided to Ms Chandra and why the matter had not been foreshadowed with the Defendant’s legal representatives.

111. Counsel for the Defendant, somewhat faintly, opposed leave being granted to read the affidavit. He submitted that no application to adduce expert evidence on this topic had been sought, or granted; that a copy of the report had been served 1 working day prior to the commencement of the hearing; and that the particulars relied upon in the Statement of Claim did not include any assertion that the deceased suffered significant, or any, hearing loss that would lead her to not understand what was said to her at the time she gave instructions for, or when she executed, the 2019 Will.

112. Naturally, the late service of the report rendered the Defendant unable to obtain any expert evidence in response.

113. (It was as a result of the debate on the topic of the admissibility of this report that the Plaintiff sought to amend the Statement of Claim and add the particular to which reference has already been made.)

114. Ultimately, after argument, with some hesitation, I allowed the affidavit to be read as, it seemed to me, that there was really no dispute that, in 2019, the deceased suffered hearing loss, and that she was required to wear hearing aids, which she did not like doing. There was also no dispute that she had not been wearing hearing aids when she met with Mr Lee on 16 October 2019.

115. Ms Chandra was cross-examined.

116. The Defendant also sought to read an affidavit sworn on 31 January 2022 from Dr Joseph Emmanuel, a medical practitioner and lecturer at the University of NSW. The deceased had been a patient of his practice from 1994 until her death. Annexed to his affidavit was a copy of a report dated 16 December 2019. The Plaintiff objected to this affidavit being read.

117. I did not permit the Defendant to read this affidavit, principally because the report related to a matter about which other expert evidence had been given; it had been served so late; and because Dr Emmanuel’s medical records, which might have been relevant, were not produced as they had not been the subject of a subpoena by the Defendant’s legal representatives. I also considered the report to be of limited weight as it recognised that the deceased’s cognition had not been tested at the relevant time: Tcpt, 8 February 2022, p 23(31)-24(10).

Some factual background

118. In order to set the dispute in its proper context, it is next necessary to set out an overview of the factual background which led to the dispute. As with all probate disputes, a proper understanding of the events is critical.

119. The remarkable things about this case are the paucity of evidence, despite the number of witnesses, and the relatively few contemporaneous documents upon which the Court can safely rely in order to test the recollection of a number of the witnesses. Furthermore, most of the experts had not met the deceased during her lifetime and very few of the contemporaneous medical records were tendered.

120. As I have already stated, virtually no evidence was given, by either of the parties, or other family members, about the deceased’s life, or about her character. For example, the Court knows virtually nothing about her nature or her personality traits. There was, however, some information given about her.

121. I have taken what follows, in part from the evidence and, as to some dates, from a chronology provided by counsel for the Defendant which did not appear to be in dispute.

122. The Plaintiff gave evidence that the deceased did not attend school. He wrote that she “grew up during the Japanese war and was unable to receive an education”.

123. It seems that the deceased, for about 36 years (1929 to mid-1965), lived in Singapore. She then lived in Beijing for about 3 years (mid-1965 to early 1968), in Macau, for about 7.5 years (mid 1968 to late 1975) and in Sydney for 44 years (late 1975 until her death in 2019).

124. The deceased married David, the father of the five children, on a date not disclosed in the evidence. As stated, he died in July 1991. The deceased did not remarry, or enter into a de facto relationship, thereafter.

125. The deceased did not work outside the home and did not drive.

126. There is no evidence of the deceased having attended any English classes after coming to Australia. It is clear that she was neither fluent, nor literate, in the English language.

127. On a date not known, the deceased and David purchased a property at Burwood. It was in this property that the deceased lived from that time until her death. As was previously stated, the Plaintiff and his wife, Alice, lived there from about 1979.

128. Whilst there is no dispute that the deceased conversed in Hainanese, the extent of her proficiency in Mandarin Chinese was a matter of real contention. From the evidence of Dr Xu, Chinese is a language, whilst Mandarin and Min is each one of the seven major dialect groups or branches of that language. Hainanese is a further sub-dialect of the Min (Southern Min) dialect group and is spoken in the southern part of China.

129. The deceased was admitted to Concord Repatriation General Hospital on 29 August 2019 due to bleeding. She was discharged on 3 September 2019, after having been diagnosed with pneumonia and being treated with antibiotics and provided with an inhaler. The bleeding was managed with tranexamic acid, which I understand to be a medication used to treat or prevent excessive blood loss. She was admitted, again, to hospital on 9 October 2019, on this occasion, with extensive bruising to her right arm. She was discharged the same day. She was re-admitted on 12 October 2019 due to her upper right arm still being swollen, with continuing pain. She was discharged on 15 October 2019. She was admitted to hospital, for the last time, on 31 October 2019 where she died some weeks later.

130. At the time of making the 2019 Will, the deceased had a history of chronic hepatitis B, for which she was being treated with an anti-viral medication, Entecavir. She also had cirrhosis of the liver.

The principles regarding evidence

131. In Robertson v Barker [2021] NSWSC 1682 at [77]-[78], [132]-[147], I noted some general principles which I consider bear repetition, and which should be kept in mind in coming to conclusions on the issues in the case:

“There is no hierarchy in the sources of evidence in Probate suits. The weight to be given to the evidence of any particular witness, whether she, or he, is lay, legal or medical, will depend on a number of factors, including, but not limited to, the independence of the witness; her, or his, knowledge of, and familiarity with, the will-maker; her, or his, experience, training and understanding of testamentary capacity; her, or his, ability to assess the will-maker’s capacity; and the quality of any such assessment made, as appears from amongst other things, contemporaneous notes and records.

This does not mean that there is no wisdom in the view that “the vital evidence is very often not given by medical experts, but is given by experienced lay observers … [and] that the most valuable evidence is usually given by the experienced solicitor who witnessed the will as opposed to a very highly qualified psychiatrist whose evidence is based not on any personal observation of the testator, but who has reasoned his or her opinion from medical and hospital notes” (Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197 at [89] (Young JA)); or that an experienced solicitor’s evidence is capable of being “valuable evidence of testamentary capacity” because an “experienced solicitor… gets used to dealing with people making wills and [is] usually attuned to red lights that flash when a person who is of suspect capacity comes across their path”: Drivas v Jakopovic (2019) 100 NSWLR 505; [2019] NSWCA 218 at [52] (Macfarlan JA, Bell ACJ and McCallum JA agreeing).

…

It is also useful to remember another passage in Chiu Man Fu v Chiu Chung Kwan Ying [2012] HKCFI 82 at [74]-[75]:

“… Given that human nature is multi-dimensional and at times complicated, the law fully recognizes that a testator, like any ordinary human being, conducts himself according to his own personality, temperament, traits, idiosyncrasies or eccentricities and that his act is influenced by his affections, desires and prejudices. Thus, in determining testamentary capacity, the law does not call for a perfectly balanced mind freed from all influence of prejudice, passion and pride. Nor does the law say that a man is incapacitated from making a will if he is moved by capricious, frivolous, mean or even bad motives. ‘Eccentricity, lack of justice, lack even of common sense in the dispositions is not of itself enough’: John Buckenham v Dickinson & Ors [2000] WTLR 1083, per HH Judge Cooke (sitting as a High Court Judge) at p. 1090D. The testator may, for example, disinherit, either wholly or partially, his children, and leave his property to strangers to gratify his spite, or to charities to gratify his pride, and the court must give effect to his will, however much the course he has pursued is condemnable, so long as he has the requisite testamentary capacity. The court does not sit to correct injustices in that respect. As Sir John Hannen said in Boughton v Knight, supra, at p.66:

‘Our duty is limited to this, to take care that that, and that only, which is the true expression of a man’s real mind shall have effect given to it as his will. In fact, this question of justice and fairness in the making of wills in a vast majority of cases depends upon such nice and fine distinctions, that we cannot form, or even fancy that we can form, a just estimate of them.’

Put in another way, the law does not require a testator to act fairly when he makes a will. The law is not concerned with an objective assessment if his testamentary disposition is fair, reasonable or not. The law is only concerned with whether he had the testamentary capacity to make the will.

It will be necessary to repeat some of the statements said to have been made by the deceased as part of the mosaic of facts; to consider the reliability of the witness who gave evidence of those statements; and, if the statements of the deceased are found to have been made, to consider whether they prove the facts which they might evidence. For the most part, I have proceeded upon the basis that such statements are properly characterised as original evidence of relevant matters sought to be established by the statements, namely the knowledge, intention, and mental state, of the deceased at various times.

It is necessary to bear in mind the need for careful scrutiny to which evidence of conversations involving a person subsequently deceased, should be subjected: Plunkett v Bull (1915) 19 CLR 544 at 548-549 (Isaacs J); [1915] HCA 14. The deceased is not available, at the hearing, to admit, or directly confirm or deny statements made. That need may even be greater where the person giving evidence of the conversations has a self-interest.

McLelland CJ in Eq cited Plunkett v Bull in Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785 at 789, in which case, his Honour wrote that "in a claim based on communications with a deceased person, the court will treat uncorroborated evidence of such communications with considerable caution". Whilst there is no absolute legal requirement for it, the Court should look for some corroboration: Re Hodgson (1885) 31 Ch D 177 at 183; Day v Couch [2000] NSWSC 230 at [9]; Weeks v Hrubala [2008] NSWSC 162 at [20].

Whelan J in Webb v Ryan [2012] VSC 377, at [22], referred to the difficulties in assessing evidence of what was said by a deceased person, stating:

“An important matter which may arise in these kinds of cases is the difficulty of assessing evidence concerning things allegedly said by a person who is dead. The court can never be certain it knows all the circumstances, and more often than not one may be sure that the court knows few of them. It is impossible to hear what the other party to the conversation, the deceased, says about it. There is a significant risk of reconstruction. There are dangers in relying on evidence of what may have been a casual observation made to a person who at the time had no reason to remember the exact words used. In the light of these concerns, a substantial burden is placed upon an applicant whose case relies upon such evidence. Such evidence must be very carefully examined.”

Also, I refer to what was written in Wesley v Wesley (1998) 71 SASR 1, by Debelle J at 5:

“Evidence might also be led from persons other than the testator’s solicitor to whom the testator had spoken either before or after the execution of his will. Care must be taken with such evidence. The evidence may be tainted by self-interest or by a desire to enable a particular person to benefit. Alternatively, a testator who has expressed an intention to benefit a person not named in the will might have been intending to appease a member of his family. It is not uncommon in human experience for a testator to give divergent accounts of his will to different persons either to maintain harmony or to curry favour with family or friends. Each case will have to be determined on its own facts and each will suggest the kind of caution which should be exercised.”

In Camden v McKenzie [2007] QCA 136, Keane JA observed, at [34], that:

“... the rational resolution of an issue involving the credibility of witnesses will require reference to, and analysis of, any evidence independent of the parties which is apt to cast light on the probabilities of the situation.”

His Honour’s observation was cited, with approval, by Leeming JA (with whom Barrett JA and Tobias AJA agreed) in State ofNew South Wales v Hunt [2014] NSWCA 47 at [56].

I also refer to what McHugh J, as a member of the High Court, wrote in Longman v R (1989) 168 CLR 79 at [107]; [1989] HCA 60:

“The fallibility of human recollection and the effect of imagination, emotion, prejudice and suggestion on the capacity to ‘remember’ is well documented. The longer the period between an ‘event’ and its recall, the greater the margin for error. Interference with a person's ability to ‘remember’ may also arise from talking or reading about or experiencing other events of a similar nature or from the person's own thinking or recalling.”

…

Experience dictates that greater weight is usually accorded to contemporaneous documents, as often they provide a safer repository of reliable fact, particularly when it is clear that they have been prepared by a person with no reason to mis-state those facts in the documents and where there is no suggestion that the documents are other than genuine: Hughes v St Barbara Mines Ltd [No 4] [2010] WASC 160, per Kenneth Martin J, at [157]; Evans v Braddock [2015] NSWSC 249 at [74]. This is not an admonition against placing any reliance at all on the recollections of witnesses. It simply “emphasises the fallibility of human memory and the need to assess witness evidence in its proper place alongside contemporaneous documentary evidence and evidence upon which undoubted or probable reliance can be placed”: Kogan v Martin [2019] EWCA Civ 1645.

Evidence given against interest, or which is inherently probable, is more convincing: Saravinovska v Saravinovski (No 6) [2016] NSWSC 964 at [467] (Kunc J).

I also remember what was said by Emmett J in Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (No 2) (2011) 297 ALR 56; [2011] FCA 1123, at [48]:

“When proof of any fact is required, the Court must feel an actual persuasion of the occurrence or existence of that fact before it can be found. Mere mechanical comparison of probabilities, independent of any belief in reality, cannot justify the finding of a fact. Actual persuasion is achieved where the affirmative of an allegation is made out to the reasonable satisfaction of the Court. However, reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding are considerations that must affect whether the fact has been proved to the reasonable satisfaction of the Court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences (see Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2).”

The credibility of a witness and his, or her, veracity may also be tested by reference to the objective facts proved independently of the evidence given, in particular by reference to the documents in the case, by paying particular regard to his, or her, motives, and to the overall probabilities: Armagas Ltd v Mundogas S.A. (The Ocean Frost) [1985] 1 Lloyd’s Rep 1 at 57 (Robert Goff LJ). Also see, In the matter ofKit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547 at [7] (Black J).”

The evidence of the family members

132. The Plaintiff swore four affidavits in these proceedings, being one sworn 28 January 2021, comprising 38 paragraphs, and spanning 6 pages; an affidavit sworn 14 April 2021, comprising 9 paragraphs, and spanning 3 pages; a third affidavit, sworn 15 January 2022, comprising 4 paragraphs, and spanning 2 pages; and an affidavit in reply sworn 29 January 2022 comprising 16 paragraphs, and spanning 2 pages.

133. It is clear that the Plaintiff has a significant financial interest in the result of the case since his interest in the 2011 Will is substantially greater than it is in the 2019 Will. I have borne this in mind when assessing his evidence.

134. Boon was born in November 1951, in Singapore, but he has lived in Australia since 1976: Tcpt, 8 February 2022, p 51(46)-52(3). He had also lived for about 3 years in Beijing. He maintained that he had not learned to speak Mandarin Chinese whilst he lived there. He works as a small business operator in food distribution.

135. Boon had a close and loving relationship with the deceased and gave unchallenged evidence that, since 1979, he had lived in the Burwood property with his wife and parents. During this time, they had looked after, and had financially supported, the deceased: Affidavit, Tong Boon Lim, 28 January 2021 at par 4. He said that from 1977, he had made monthly repayments of $600 to his parents to assist with the repayment of the mortgage: Affidavit, Tong Boon Lim, 14 April 2021 at par 5.

136. He asserted that from 2015, he and his wife had provided more daily care for the deceased, including feeding her, administering medication, and taking her to medical appointments. He also said that he had paid for all her expenses, the running costs of the Burwood property, and had provided her with an allowance of $600 per month: Affidavit, Tong Boon Lim, 28 January 2021 at par 5.

137. When the deceased’s health declined further in 2019, Boon arranged for a carer to come 5 times a week to assist in bathing the deceased: Affidavit, Tong Boon Lim, 28 January 2021 at par 5.

138. Boon stated that in about 2006-2007, the deceased had been diagnosed with breast and liver cancer. In addition, she suffered from arthritis, eczema, lymphoedema and hearing loss: Affidavit, Tong Boon Lim, 14 April 2021 at par 7.

139. He gave evidence, which was also not disputed, that the deceased had been admitted to Concord hospital due to extreme pain in her limbs on 9 October 2019, had been discharged the next day, but had been readmitted on 12 October 2019, and discharged on 15 October 2019: Affidavit, Tong Boon Lim, 28 January 2021 at pars 6-7, 10.

140. Boon wrote that after the deceased was discharged, she complained that she was in severe pain and she would rarely speak. He stated that she was taking a great deal of medication and that the medication, at this time, made her drowsy and tired: Affidavit, Tong Boon Lim, 28 January 2021 at par 10; Affidavit, Tong Boon Lim, 14 April 2021 at par 9.

141. On 9 October 2019, Boon flew to Singapore for five days and returned to Sydney on 14 October 2019: Affidavit, Tong Boon Lim, 28 January 2021 at pars 13-15. Upon his return, Lily approached him and asked him to drive the deceased into the city to see a solicitor. He said that she told him “something about Mum had not signed her 2011 Will”.

142. On this topic, Boon, initially, said that Ping had told him that the deceased was visiting Mr Lee to sign her will: Affidavit, Tong Boon Lim, 28 January 2021 at par 19. He maintained in cross-examination that the conversation had occurred: Tcpt, 8 February 2022, p 40(25-49). Despite having written in his affidavit that he had first been asked to do so on 14 October 2019, in cross-examination, Boon maintained that the first time he had been asked was on 16 October 2019.

143. Boon gave evidence that he did not speak to the deceased about this event. When asked why he had not done so, he simply answered “Because this is what my sister told me”: Tcpt, 8 February 2022, p 34(9-21). He added, when asked again, that he did not do so because “she’s filled with – full of pain and she’s so weak, sleepy”: Tcpt, 8 February 2022, p 34(36-42), p 42(11-19).

144. He also said that he did not ask the deceased, or either of his sisters, about the purpose of the visit to the solicitor. He maintained that he “trusted his sister that we are going down to sign the old will”: Tcpt, 8 February 2022, p 36(11-16). (This statement, it was said, related to his own state of mind in the lead up to taking the deceased to the solicitor’s office, rather than as to its truth: Tcpt, 8 February 2022, p 38(22-24).)

145. In answer to a question from the Bench, he stated that he had said something to his sisters about the deceased being very sick, frail and in pain. However, a conversation along those lines did not appear in any of his affidavits. Nor did he explain why he had agreed to, and did, drive the deceased to see a solicitor when she was in that condition.

146. In the circumstances of the case, and Boon’s evidence about the deceased’s condition, the lack of any discussion with the deceased, his siblings, and with Mr Lee is difficult to comprehend.

147. On 16 October 2019, Boon drove the deceased, Lily, Ping and Ping’s daughter (a minor), to the city to meet Mr Lee at his office. He said that there had been no conversation, before the deceased entered the car, and none whilst in the car, on the way, about the purpose of the visit to the solicitor: Tcpt, 8 February 2022, p 36(42-49).

148. Boon maintained that the deceased was very quiet on the drive to the solicitor’s office and during the 20 to 30 minute trip, there was no conversation with the deceased about why they were going there.

149. Boon stated that he had never seen a copy of any of the deceased’s previous wills before her death. He said that the deceased had never discussed the details of her will with him, other than once, when she said that the will would allow him to continue to live in the Burwood property after her death: Affidavit, Tong Boon Lim, 28 January 2021 at par 17.

150. But, in cross-examination, he said that he and the deceased had spoken many times about her will, many years before her death, and that the last time she had done so was “two weeks before she passed away”: Tcpt, 8 February 2022, p 50(04-24).

151. He also maintained that the deceased did not have knowledge of the Mandarin Chinese, or English, languages, other than she could say, and understand, basic words including: “hello, goodbye, yes and no.” He stated that the deceased had some basic knowledge of Cantonese and Hokkien, but that Hainanese was the only language in which she could effectively communicate: Affidavit, Tong Boon Lim, 28 January 2021 at pars 35-37.

152. The Plaintiff explicitly denied that the deceased ever spoke to Sony, Lily or any other family members, in a combination of Hainanese and Mandarin: Affidavit, Tong Boon Lim, 29 January 2022 at pars 9 and 14.

153. He also stated that the only languages that he spoke were Cantonese and English, although he is able to speak, and understand, a few simple words in Mandarin Chinese. He stated that he did not know the Mandarin Chinese words which meant “equal” or “equality”: Tcpt, 8 February 2022, p 32(35-37).

154. Bearing in mind the evidence quoted above, he did not explain, in any of his affidavits, or otherwise, how he and the deceased communicated with each other.

155. Boon gave evidence that the deceased was not wearing her hearing aids when they left for the solicitor’s office. He said this was because generally she “refused to put it [the hearing aids] on” because they made an unpleasant noise: Affidavit, Tong Boon Lim, 14 April 2021 at par 8; Tcpt, 8 February 2022, 53(20-24). He accepted that, at no point before leaving the Burwood property, or otherwise, did he raise, with the deceased, the fact that she was not wearing her hearing aids: Tcpt, 8 February 2022, p 33(37-46), p 42(31-41). Again, he provided no reasons why he did not do so when he knew that she was going to see a solicitor, who, presumably, would speak to her.

156. Boon gave evidence that when they arrived at Mr Lee’s office, he wheeled the deceased, who was then in a wheelchair, into the conference room. The other family members also went into the conference room. He said that a short time later, they left, and waited outside, whilst the deceased remained there with Mr Lee and the interpreter: Affidavit, Tong Boon Lim, 28 January 2021 at pars 20-21.

157. He also gave evidence that, after a period of time, Mr Lee came out to the reception area to confirm with the family members, the spelling of his, and her, names respectively: Affidavit, Tong Boon Lim, 28 January 2021 at par 22. In cross-examination, he explained that he did not write down his own name and address, saying that Lily and Ping wrote down the details of each of the children: Tcpt, 8 February 2022, 44(15-20), 45(23-33); Ex D2/17.

158. Boon stated that Mr Lee came back later to advise that the meeting was finished, and that he then went back into the conference room, only to push the deceased’s wheelchair outside: Affidavit, Tong Boon Lim, 28 January 2021 at par 23. He specifically denied that he had been shown a copy of any will or that he had been told about the contents thereof.

159. Although in his affidavit in reply, Boon stated that he did not recall the deceased telling him, Ping and Lily why she was leaving Rose out of her will at the meeting with Mr Lee, in cross-examination, he denied being told that Rose was being left out of the will. He maintained that he had no conversation with anyone when he went into the conference room to escort the deceased out: Tcpt, 8 February 2021, p 47(24-27), p 49(16-18), 54(43-50). The Plaintiff simply said:

“I did went back when they finish the meeting where I get my mum in a wheelchair and I bring her out”.

160. Pausing there, I do not accept Boon’s evidence on this topic. Mr Lee and Lily, each gave evidence of Ping, Lily, and the Plaintiff, being ushered back into the conference room prior to the 2019 Will being signed. They also gave evidence that there had been a discussion, whilst the family members were present, about the terms of the will, which had not yet been signed. Whilst the version of what was said, and by whom, may have differed, the complete omission, from Boon’s affidavits, and then his denial, in the witness box, of returning to the conference room and there having been some discussion about the contents of the 2019 Will, affects his credit.

386. It is difficult to conclude that the deceased had the capacity to give, any, or any real, consideration to the competing claims upon her bounty before giving final instructions as to her testamentary dispositions.

387. Stating that it was for her children to sort out any issues, also does not assist in concluding that the deceased had capacity. It suggests that she may not have had the capacity to evaluate, and to discriminate between, the respective strengths of the claims of the persons with claims upon her bounty.

388. Nor did Mr Lee state in his evidence that he explained to the deceased that the draft will that he had prepared, when executed by the deceased, would revoke all prior wills.

389. As I have stated earlier, the contemporaneous diary note made by Mr Lee is also far from complete, in the sense that much of the evidence that he included in his written, and oral, evidence, given subsequently, is not established by what was written in it. Indeed, as will have been read, the contents of the diary note were quite sparse.

390. (Nor was there a diary note of his conversation with Ping when the conference with the deceased was arranged, and when Ping is alleged to have said that the deceased was “fine”.)

391. As I have previously stated, there was no reference, in the diary note to the deceased having instructed him to call the children into the conference after the draft will was prepared and what was said to have occurred when he did so. I have described that earlier as a glaring omission.

392. In October 2019, Mr Lee was unaware of the principles referred to in Banks v Goodfellow and did not know of the propositions for which the case stood. In those circumstances, he could not have had "the Banks v Goodfellow tests at the front of his … mind": C Birtles and R Neal, Hutley’s Australian Wills Precedents (9th ed, 2016, LexisNexis Butterworths) at [1.14]; Manning v Hughes; Estate of Ludewig [2010] NSWSC 226 at [47] (White J).

393. Nor did Mr Lee not appear to have been aware of the New South Wales Law Society's Client Capacity Guidelines: Civil and Family Law Matters (2003), the Guidelines for Solicitors Preparing an Enduring Power of Attorney (December 2003), or the document also prepared by the Law Society headed "When a client's capacity is in doubt: A Practical Guide for Solicitors" (2016). He was unaware of the suggestion made by the Law Society that a medical practitioner ought to be present in the case of a person whose capacity might later be the subject of challenge. He appears to have made no enquiries, or carried out any research, or read articles, or cases, about the sorts of things that a solicitor ought to be looking for when he, or she, attended upon an elderly person for the purposes of making a will.

394. Contrary to the clearest guidance, in well known cases, he gave no evidence of having taken any special precautions when seeing the deceased on 16 October 2019. Nor, it would appear, did Mr Lee test the deceased’s cognitive powers, in any meaningful way, for the purpose of ascertaining her testamentary capacity. His reliance upon the deceased’s affirmative monosyllabic responses, which, he said, led him to form the view that she had capacity, in the circumstances, hardly suffices to resolve the doubts raised by other matters to which reference has been made.

395. Mr Lee did not specifically test the deceased’s capacity. No medical opinion to reveal her capacity was sought, or arranged, at the time of the deceased executing the 2019 Will. I appreciate that doing so would not operate as a touchstone of the validity of a will, and that non-compliance would not, on its own, demonstrate the invalidity of the 2019 Will. However, in the circumstances of this case, these steps would have assisted greatly, in avoiding, or at least minimizing, the dispute.

396. Whilst Mr Lee maintained his confidence that the deceased was fully aware of what she was doing at the time and that he had no reason to doubt her capacity, and whilst the evidence of an experienced, and impartial solicitor, would normally carry great weight, for all of the reasons I have set out previously, I do not gain confidence from his evidence on the ultimate question. The deceased's capacity was not adequately tested. In this regard, an affirmative, yet monosyllabic, response to a question, does not, without more, provide any real insight about the deceased's state of comprehension.

397. He may also have relied upon Ping having told him that the deceased was “fine”, which if he did, was hardly a matter upon which reliance could be placed when he was also informed at the time she was in, or had just come out, of hospital. Bearing in mind the information available to him, he did not seek to obtain the opinion of any of the deceased’s treating medical practitioners about her capacity.

398. Unfortunately, I have not been able to place unquestioning reliance on Mr Lee’s evidence in connection with the making of the 2019 Will. I simply cannot be confident that his view as to the deceased’s capacity is reliable. In my view, it has not been shown to be based on a proper assessment and otherwise soundly based.

The Interpreter’s evidence

411. Like Mr Lee, Ms Li had not met the deceased prior to the conference on 16 October 2019. However, a prior arrangement had been made for her to be there and to interpret for Mr Lee. It was not clear whether she had been informed that she would also be one of the attesting witnesses to the deceased’s signature on a Will.

412. Despite what might be regarded as an unusual aspect of the conference with the deceased, being that the deceased asked Mr Lee to have the children come into the conference room so that they could be told of the contents of the will being drafted, Ms Li was unable to remember anything about the events. She was unable to offer any observations about the deceased other than to reiterate that the attestation clause contained a reference to what had occurred and that if she had doubts about the deceased understanding what she was saying in Mandarin Chinese, she would have alerted the solicitor to that fact, which she did not do.

413. When one considers the attestation clause, I am not satisfied that great weight can be placed upon it, because, whilst it is undisputed that the deceased had an imperfect knowledge of the English language, there is a real dispute about whether she was able to understand the Mandarin Chinese language.

414. Furthermore, the evidence does not reveal that the 2019 Will was read over in English or read to, the deceased in the Mandarin Chinese language. I accept that what was done was done in the presence of Ms Li and Mr Lee. It is not entirely clear whether the deceased stated to Ms Li her understanding and approval of the will, which Ms Li interpreted to Mr Lee in English.

415. The 2019 Will was prepared by Mr Lee based on instructions conveyed to him, through an interpreter, by the deceased, whom he had never met, or spoken with, previously. It followed a single consultation with her. The Banks v Goodfellow propositions were not at the front of his mind. Neither he nor Ms Li provided any evidence that could have satisfied the Court that all of the elements of the test in Banks v Goodfellow was satisfied. The lay evidence of the other witnesses, including family members, and Ms Li, did not address any of the Banks v Goodfellow elements.

The relevance of an attestation clause

416. It is not essential for a will to have an attestation clause: s 6(3) of the Succession Act. However, one function of an attestation clause is to satisfy an evidentiary purpose, namely whether there has been compliance with s 6 of the Succession Act. Although not conclusive, an attestation clause constitutes prima facie evidence that the formalities have been complied with: G L Certoma, The Law of Succession in New South Wales (4th ed, 2010, Lawbook Co) at 95 [6.80].

417. In A Learmonth, J Clarke, K Shuman, C Ford and T Fletcher, Theobald on Wills (19th ed, 2021, London, Sweet and Maxwell) at [3-035], it is written that an attestation clause facilitates acceptance of due execution. Whilst it raises a presumption that the will was duly executed, by itself, it is not conclusive. However, it is also written that a formal attestation clause in a will, regular in form, raises a strong presumption, which presumption can only be rebutted by cogent and reliable evidence that the will was not duly executed.

418. In other words, the presence of an attestation clause is desirable because it facilitates the grant of probate and will give rise, in the absence of other material circumstances, to a presumption of due execution: Weiss v Weiss; Estate of Anita Hildegard Weiss [2020] NSWSC 1064 at [71].

419. The essence of a suitable attestation clause should record the inability, or deficiency, of the will-maker in literacy, or in the English language, as the case may be, and confirm that the will was read over to the will-maker or translated to her, or him, by the person named, preferably in the will-maker’s preferred language, and if possible, with confirmation that the will-maker stated that she or he knew of, and approved, its contents. The reading over, or the interpretation, should occur in the presence of the attesting witnesses (if one is not the interpreter) and the attestation clause should record that the will-maker signed the will in the presence of both witnesses, who then attested the will-maker's signature: Scarpuzza v Scarpuzza (2011) 4 ASTLR 244; [2011] WASC 65 at [37] (E M Heenan J). The reading over of the will must be proper and sufficient if it is to show knowledge and approval.

420. In Scarpuzza v Scarpuzza, E M Heenan J wrote at [32].

“The presence of a suitable attestation clause, especially in a case like this, if adapted to acknowledge the testator's limited understanding of the English language, can assist in establishing due execution and, hence, knowledge and understanding of the contents of the will by the testator.”

421. As the deceased could not read, or speak, English, affirmative proof of her knowledge and approval is required, and the Court must consider such proof carefully and vigilantly. The proof may take any form, provided it is strong enough to satisfy the court that the deceased knew and approved the contents of the 2019 Will.

422. The sufficiency of the attestation clause used in the 2019 Will is a question of some importance and concern to Boon, principally because it was said that the deceased only spoke the Hainanese dialect fluently.

423. In this case, there is no dispute that the 2019 Will was duly executed. However, there is a question concerning whether the facts, as stated in the attestation clause, had occurred. In In re Groffman, decd [1969] 1 WLR 733 at 736-738, Sir Jocelyn Simon P found that the evidence of certain witnesses, which was found to be credible, demonstrated that the attestation clause was contradicted by what had likely happened.

424. There is some evidence by Ms Li that she was retained to carry out an interpretation of the explanation by Mr Lee of the 2019 Will to the deceased. The language into which she interpreted what was said, in English, by Mr Lee, to the deceased, as the attestation clause stated, was the Mandarin Chinese language.

425. Both Mr Lee and Ms Li confirmed the evidence of the 2019 Will being interpreted to the deceased in the Mandarin Chinese language by Ms Li but neither wrote in his, or her, affidavit, respectively, that it had been translated in the Mandarin Chinese language to her. The Plaintiff relied on this fact.

426. It is also important to remember that in each of the 2011 Will and the 2000 Will, the language referred to in the attestation clause, was the Hainanese dialect rather than Mandarin Chinese.

Conclusions

427. I turn now to apply the above principles of law to the facts as I have found them. It is necessary to read what follows in the context of what has been written earlier in these reasons.

428. The starting point is that the burden of proving testamentary capacity lies on the Defendant, who seeks to uphold the 2019 Will. It is clear that the 2019 Will was regular on its face and, apparently, rational. Due execution of the 2019 Will was established. There is, therefore, an initial presumption that, for testamentary purposes, the deceased was capable.

429. However, there was also no dispute, then, that Boon, in seeking the revocation of the grant of the 2019 Will, had discharged an evidentiary onus, by demonstrating circumstances that raise a doubt as to the existence of testamentary capacity, which required Sony to satisfy the conscience of the Court that the deceased had capacity at the relevant time and that she knew and approved of the contents of the 2019 Will.

430. Following a vigilant examination of the entirety of the evidence, and applying the conventional civil standard of proof, in accordance with Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 or, now, s 140(2) of the Evidence Act 1995 (NSW), I am satisfied that there remains a substantial residual doubt which is sufficient to preclude the belief that the deceased was of sound mind, memory and understanding at the time of execution of the 2019 Will.

431. I have come to this conclusion despite the relative simplicity of the dispositive clause of the 2019 Will, and even though it is no small thing to reach it.

432. Even if the 2019 Will appears rational on its face (a matter to which I shall return), that doubt has not been displaced and I am unable to make a positive finding of satisfaction that it was more likely than not that the deceased had capacity and that she knew and approved of the contents of that Will. In reaching this conclusion, I have not forgotten that testamentary capacity is not reserved for people who are wise, or fair, or reasonable: Re Griffith at 291 (Gleeson CJ).

433. The lay evidence of family members, on each side, was the subject of some dispute. Conversations with the deceased on the way to, or from, Mr Lee’s office, or of any conversation with the deceased thereafter, about what she had done, is singularly lacking. In circumstances where the deceased was said to have wanted her children to attend with her, the failure to discuss what had occurred, is, to say the least, curious. That curiosity is heightened by the failure on the part of each party to call Ping as a witness.

434. There was virtually no objective evidence which demonstrated that the deceased was able to sift, and weigh, information, or that she was capable of making a purposeful decision in regard to the claims on her bounty. Importantly, the deceased did not refer to the view that she had expressed concerning Boon and did not suggest that anything had occurred which would prompt an alteration of the provision made for Boon in any earlier will that the deceased had made, or otherwise cause her to provide him with an equal, as opposed to a greater, share of her estate, as she had done in the 2011 Will.

435. In saying this, I have remembered that “[p]roof of testamentary capacity requires proof that the testator was capable of evaluating the claims on [her] testamentary bounty, but it is not a general requirement of a valid will that the testator actually made such an evaluation”: Estate of George Aeneas McDonald; Howard v The Sydney Children’s Hospital Network (Randwick & Westmead) [2015] NSWSC 1610 at [61] (White J).

436. Whilst it may have appeared, without investigation, that dividing her estate between four of her five children, omitting the fifth child from whom the deceased was said to have been estranged, was simple, reasonable and rational, whether it was, in fact, any of those things must be considered in light of the facts that ought to have been known to the deceased, what had been written in the 2011 Will, and the provision that had been made for the deceased’s children in each of the deceased’s other wills.

437. I accept that one does not, necessarily, reason that because a will is rational, a will-maker has testamentary capacity. Equally, “[a]ny unreasonableness of a will, as distinct from irrationality, is of little, if any, relevance on an issue as to testamentary capacity”: Starr v Miller [2022] NSWCA 46 at [65] (Macfarlan JA). Yet, even though the law may not be concerned with an objective assessment of whether the testamentary dispositions are fair and reasonable, on a question of capacity, the outcome is an important, although not conclusive, indicator of the existence, or lack, of capacity and understanding.

438. In this case, one might consider, bearing in mind the Mandarin Chinese word said to have been used by the deceased, there is persuasive evidence, that whilst the 2019 Will provided an “even” share to each of the four children, that provision was not “fair” or “just” to Boon. It raises a substantial doubt as to the deceased’s capacity, with respect to evaluating, and discriminating, between the respective strengths of the claims of her children.

439. Furthermore, the simplicity of the 2019 Will does not logically bear upon whether the deceased had capacity to comprehend, appreciate, or evaluate, the claim of Boon upon her bounty. Whilst the Court may not have to conclude that the deceased could recall the terms of any of her previous wills, or the reasons why each provided as it did, here I am not actually persuaded that the deceased was capable of accessing that information, if needed, and of understanding it when reminded of it.

440. Furthermore, merely dividing her estate equally and leaving it “for the children to work out” if either Boon, or Rose, made a claim, does not reveal the capacity to make a conscious choice between the claims of each upon her bounty.

441. The Court is not persuaded that the deceased was capable of accessing, recollecting, and understanding, the facts and circumstances to enable her to weigh up the competing claims on her bounty and what she had written in the 2011 Will (or any of her earlier wills).

442. This is demonstrated by the dispositive clause of the 2019 Will which was inconsistent with what appears to have been the deceased’s long held intention to provide more of her estate to one of her children, Boon, with whom she had lived for so many years. It would seem that she had not lived independently, for many years, principally because of the assistance, financial and otherwise, provided by Boon and his wife, Alice. This was not really the subject of any substantial dispute.

443. The terms of the 2019 Will also ignored the statements made by her to Boon, and to Ms Han, about what would happen on her death. It is not just a case of apparently forgetting what she had said to Boon, but also forgetting the nature of the provisions of her previous wills which reflected what she had said. No explanation for the significant change was given by the deceased.

444. I have not forgotten that a will-maker is not required to justify any change in testamentary dispositions whether to her, or his, solicitor, or anyone else in order to prove that she, or he, has testamentary capacity. Nor does she, or he, have to give reasons to the author of the Will. Subject to the provisions of the Succession Act, a will-maker is entitled to leave her, or his, estate as she, or he, chooses, however capricious that choice may be, and however ungrateful, or unfair, the terms may be to those whose expectations of testamentary benefit are disappointed.

445. However, if the terms of the disputed Will are inexplicable or irrational, it is likely that there will be serious doubt as to capacity, particularly where no reasons, let alone no cogent, apparently considered, and reasonable reasons, at all are given by the deceased to her solicitor for the exclusion of Boon.

446. Having capacity to comprehend the claims to which she ought to give effect, in the present case, included the deceased being able to make a judgment about whether there was any reason to depart from her long held testamentary intention of making greater provision for Boon. She required the capacity to process, and be able to weigh, the competing claims of all of her children.

427. How, and why, did the deceased come to change her mind? Without any explanation, or evidence of any cause, the most significant change in reducing Boon’s share of the estate, in my view, demonstrates the deceased’s inability to evaluate the competing claims on her testamentary bounty. The terms of the 2019 Will were, in this regard, inexplicable. Making the 2019 Will in those terms was inconsistent with a rational assessment of the greater moral obligation owed to Boon, a matter that the deceased had recognised in her earlier wills.

428. If that were not enough, in the present case, the use, by Ms Li, of Mandarin Chinese words that conveyed the meaning of concepts as was conveyed by Mr Lee in English, would not have been an easy task. I accept that the standard of interpretation would not be one of perfection – indeed, such a standard is likely to be impossible.

429. In this context, the adequacy of the communication through interpretation is of some importance. Mr Lee did not know whether all of what he was saying was accurately interpreted to the deceased and whether all of the deceased’s responses were accurately conveyed to him in English.

430. Reaching a state of satisfaction is made even more difficult because Ms Li was unable to remember the event which occurred; because there was an absence of evidence about the standard of her interpretation; because of the dispute about the deceased’s ability to speak, and understand, Mandarin Chinese; and also because of the deceased’s hearing difficulties.

431. Perhaps not unnaturally, there was an absence of a contemporaneous written, or other, record made by Ms Li of what passed between her and the deceased. This means that there is no way for the Court to assess what the deceased actually heard because there is no transcript, or even a record, of Ms Li’s translation. In this regard, it is to be remembered that Ms Li was present for 2.5 hours.

432. The Court may accept that Ms Li’s interpretation was adequate to convey the substance of what was said, and written, by Mr Lee, and what was said by the deceased, and that being a NAATI interpreter had accurately and faithfully interpreted what she was required to interpret. However, there remains the unanswered question concerning whether there was a linguistic understanding, by the deceased, of the concepts interpreted in the Mandarin Chinese language when it is more likely than not, that the deceased’s principal language of choice was Hainanese.

433. Because of the contents of Mr Lee’s diary note, it is also more probable than not, that the deceased understood at least some of what Ms Li was interpreting to her in Mandarin Chinese, sufficient to convey the instructions to Ms Li and repeated by her to Mr Lee. Yet, even if the accuracy of the interpretation were accepted, the discussion does not provide an adequate basis for drawing a conclusion in favour of the deceased having testamentary capacity.

434. I have earlier referred to the fact that the deceased was not wearing her hearing aids when she attended the conference with Mr Lee and Ms Li.

435. Even accepting Mr Lee’s evidence that the 2019 Will was explained to the deceased before its execution, in the circumstances of this case, in my view that was not sufficient. The Court must look at the evidence as a whole. As Gleeson CJ wrote in Re Griffith at 289-290, whether probate should be granted is determined on all the evidence.

436. Finally, whilst there was no medical evidence on the question of the deceased’s condition on the day the 2019 Will was executed, I have earlier referred to the competing medical evidence, which, even at its most favourable to the Defendant, reveals a “concern” by Professor Brew about the deceased’s capacity.

437. As has been stated, the evidence, overall, does not satisfy me that the burden on the Defendant to establish the testamentary capacity of the deceased at the relevant time she executed the 2019 Will has been discharged. Accordingly, the grant of Probate of the 2019 Will should be revoked.

438. Whilst testamentary capacity and knowledge and approval are distinct concepts, practically speaking evidence bearing upon one concept may also be relevant to consideration of the other. Whether the deceased knew and approved the contents of the 2019 Will, requires the Court to focus attention on whether she knew the contents thereof, and appreciated the effect of what she was doing, so that it can be said that the 2019 Will reflects the real intention and the true will of the deceased.

439. For many of the same reasons set out above, this is a case where the elements of suspicion arising from the circumstances are sufficient to call for affirmative proof of knowledge and approval, beyond that constituted by the due execution of an apparently rational will. Merely recognising one Mandarin Chinese word meaning “fair, just or even” in my view, is not enough bearing in mind the other matters to which I have referred.

440. There is another matter about the 2019 Will that causes some concern about the deceased’s knowledge and approval. There does not appear to have been any reason to include, in Clause 7(b) of the 2019 Will, a reference to the named beneficiaries attaining the age of 18 years and if this had been interpreted to the deceased, and understood by her, one might have expected her to have said something. In any event, it would have been obvious to Mr Lee that each of the deceased’s children had already attained that age. (I do not place too much weight on this other than to reveal the folly of using pro forma drafts without consideration of what is written in them.)

441. I have not forgotten the deceased was said to have invited the children into the conference room following instructions being conveyed to Mr Lee, and that Mr Lee has given evidence of what was said, which evidence he maintained in cross-examination. That evidence, however, was not mentioned in his diary note, and whilst it is a matter I have remembered, it has not dispelled the substantial doubt about her capacity and her knowledge and approval engendered by all of the other evidence.

442. In the circumstances, I am of the view that the grant of Probate of the 2019 Will should be revoked and that there should be a grant of Probate in solemn form of the 2011 Will.

443. The Court orders that:

1. Probate of the Will dated 16 October 2019 of Daisy Ut-Mui Lam, granted by the Court on 28 September 2020, be revoked.

2. Probate in solemn form of the Will made on 29 July 2011 by the deceased be granted to the Plaintiff.

3. The matter be remitted to the Senior Deputy Registrar in Probate to complete the grant.

4. The Cross-Claim, filed on 18 December 2020, be dismissed.

5. Orders that the Plaintiff’s costs and disbursements of the proceedings, being a specified gross sum instead of assessed costs, agreed in sum of $125,000 (including GST), be paid out of the estate of the deceased.

6. Orders that the Defendant’s costs and disbursements of the proceedings, being a specified gross sum instead of assessed costs, agreed in sum of $150,000 (including GST), be paid out of the estate of the deceased.

7. With the exception of each original Will, the exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 and the Court Books be returned.

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